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Scottish Court of Session Decisions >>
Kinlochs v Charles Oliphant, the Clerk. [1692] Mor 12233 (27 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Mor2912233-376.html Cite as:
[1692] Mor 12233
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The Lords found Charles's decreet-absolvitor of the nature of those exceptions that are called impeditivæ litis ingressus and that the said decreet should be first reduced, ere they can quarrel the disposition; but found, if there was any new ground of law insisted on against the disposition, that was not deductum in judicium in that decreet-absolvitor, that they might be yet heard on it; seeing competent and omitted did not hold in reductions, nor could be obtruded against pursuers, but only against defenders; for a man may first quarrel a right ex capite exhibitions, and if he succumb, he may raise a reduction of it on the act of Parl. 1621; and he may pursue first as donatar, and then as adjudger; and competent and omitted will not exclude him in either cases, whether the reasons be in facto or in jure: So they allowed the reporter to hear Kinlochs, the pursuers, on any new grounds not alleged in the former absolvitor.
Fol. Dic. v. 2. p. 207. Fountainhall, v. 1. p. 539.
